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Domestic Violence: considerations in both Criminal and Family Law

helping-domestic-violence-sufferers.jpgDomestic Violence: considerations in both Criminal and Family Law

  • FACT: In 2015, there were 107 Domestic Violence fatalities in Arizona.
  • FACT: 15.5 million U.S. children live in families in which partner violence occurred at least once in the past year.
  • FACT: In Arizona, a child witnesses an act of Domestic Violence every 44 seconds.
  • FACT: One in four women in the U.S. report experiencing violence by a current or former spouse/partner at some point in their life.
  • FACT: Children who experience childhood trauma - including Domestic Violence - are at greater risk of repeating the cycle of violence as adults.

Domestic Violence (DV) is one of the most pervasive and challenging issues we deal with in our office, both as the basis for criminal charges and also as an element to be considered by the Family Law court when determining Parenting Time and legal Decision-Making.

Many people are shocked to discover that Domestic Violence does not only mean conventionally-understood physical violence; it is a complex concept encompassing a far broader spectrum of behavior, and it's crucial to understand when DV happens, and why it matters.

The U.S. Department of Justice defines Domestic Violence as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. DV can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.

In Arizona, A.R.S. §13-3601 specifies the relationships necessary between the parties in order for an offense to be characterized as Domestic Violence. Some of these relationships include:

- Spouse or former spouse

- Parties have a child or active pregnancy in common

- Familial relationship by blood or by marriage

- Currently or previously romantic or sexual relationship

- Child victim who resides in the same household as the defendant

Criminal DV

Arizona is among the states hardest on Domestic Violence, bringing to bear a zero tolerance attitude towards DV in all of its forms. If you are facing Domestic Violence charges, misdemeanor or felony, do not assume for a moment that the situation is anything but serious.

Besides the simple fact that DV is a crime, a conviction of a DV offense (including an acceptance of a plea offer, which operates as a conviction) carries significant implications beyond those one might expect as punishment for a criminal infraction. Assuming a defendant is able to avoid outright incarceration, a DV conviction carries special probationary terms and conditions; the defendant will be required to undergo and pay for long-term DV counseling, and there will also very likely be drug/alcohol counseling if use was a factor in the commission of the DV.

Perhaps the most impactful result of receiving a criminal DV conviction- even in misdemeanor cases - is that the defendant will become a "prohibited possessor," thereby losing their right to own or bear firearms or to purchase ammunition.

Further, for those defendants whose employment relies upon the ability to carry a firearm (law enforcement, military, etc.) a DV conviction will have disastrous results for their career. For those who require a government security clearance in their work, such as defense contractors, civil service or teachers/coaches/counselors, a DV conviction can be equally devastating.

Orders of Protection

Even in the absence of a conviction, DV allegations are extremely volatile. An Order of Protection (OOP) may be sought by one party against another even if there are no criminal charges brought. An OOP is similar to an Injunction Against Harassment, except that a specific relationship akin to those cited above exists between the parties.

To obtain an Order of Protection (OOP), a plaintiff does not need to prove beyond a reasonable doubt (as in a criminal case) that Domestic Violence has occurred. They simply need to convince the court there is reasonable cause to believe that the defendant may commit an act of Domestic Violence or has committed an act of Domestic Violence within the past year (or within a longer period if the court finds good cause exists to consider a longer period). And if an OOP is granted, the judicial officer may find that Brady applies - meaning again that the defendant will be designated a prohibited possessor for the life of the Order.

Although an Order of Protection being issued against a party does not have the same punitive implications as a criminal conviction, it is no less serious because of the potential it carries. For example, violation of an OOP - even on accident - can result in criminal charges.

Unfortunately, sometimes an Order of Protection is necessary, and in those circumstances victims should absolutely avail themselves of the court's protection to guard against the risk of future incidents.

Our office routinely deals with Orders of Protection, and whether you need assistance in seeking an OOP against a perpetrator of DV, or are in the position of having to challenge an OOP that has been wrongly issued against you, we can absolutely assist you.

Domestic Violence in Family Law

The nature of conflict in dissolution (divorce) or Special Paternity actions is such that allegations of Domestic Violence are common, and often arise even when they are unwarranted.

Sadly, some law practitioners will seek to gain a tactical advantage in the litigation by advising their clients to unnecessarily seek an Order of Protection against the opposing party when they otherwise wouldn't have... or to exaggerate the severity of the conflict to mischaracterize common disagreement or dispute as Domestic Violence.

While Domestic Violence is a serious problem, reckless allegations are equally as serious, and there is absolutely no place for slinging unfounded DV allegations strictly because it gives your client a potential leg up. But when Domestic Violence has occurred in a marriage with minor children or in a co-parenting situation - even without criminal charges being brought, or an OOP being issued - it definitely needs to be addressed because it has very specific implications.

A.R.S. §25-403.03, Domestic violence and child abuse, deals with the question of DV as it applies to determining Parenting Time and Legal Decision-Making roles in the best interests of the child(ren). The statutory language is telling:

"A. ... joint legal decision-making shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.

B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator's history of causing or threatening to cause physical harm to another person."

In part D, the law goes on to state "[i]f the court determines that a parent who is seeking sole or joint legal decision-making has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child's best interests.

As you can see, the existence of Domestic Violence is right at the heart of determining how a party will be involved with their child going forward from the litigation.

Domestic Violence is a very real and very prevalent issue - and it need sto be handles very carefully, whether you are the victim, the defendant, or a party to a Family Law action where DV is alleged. Our office's extensive expertise in dealing with Domestic Violence matters can make all the difference when your liberty, safety or parental rights are on the line.

If you have additional questions about Domestic Violence we invite you to explore further at http://www.emergecenter.org/. But i f you are facing or anticipating a legal battle involving Domestic Violence allegations, don't hesitate to contact our office today to set up a free consultation to discuss your legal matter specifically.


Arizona Coalition to End Domestic and sexual Abuse, 20156

Arizona Coalition to End Domestic and sexual Abuse, 20156

Arizona Coalition to End Domestic and sexual Abuse, 20156

Adverse Health Conditions and Health Risk Behaviors Associated with Intimate Partner Violence, Morbidity and Mortality Weekly Report, February 2008. Centers for Disease Control and Prevention.

Anda, Robert. Black, Robert. Felitti, Vincent. 2003. Adverse Childhood Experiences Study. Centers for Disease Control and prevention, Kaiser Permanente's Health Appraisal Clinic in San Diego

U.S. Department of Justice website, https://www.justice.gov/ovw/domestic-violence

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